Number of women arguing before the Supreme Court has fallen off steeply
Pamela S. Karlan, a Stanford University law professor who has argued eight times before the high court, says a certain level of aggressiveness is needed not only at the lectern but in seeking out argument opportunities.
“I think it is hard to get a first argument, and without getting a first argument it is hard to get more arguments,” she says. “There is an aggressiveness in rainmaking that not all men have, but most of the people who have it are men.”
She says there are aspects of business development at firms that can feel “arrogant and pushy,” characteristics that “fewer women than men have.”
“I feel completely comfortable arguing before the court, but I often feel diffident about pushing myself as the person who should argue the case,” Karlan says.
Karlan, like Blatt, has been reflecting on the issue for years. In 2010, she participated in an event at Georgetown University Law Center about female oral advocates before the high court that included Justice Ginsburg, as well as some other prominent female attorneys. Ginsburg made the point that while oral argument is an important part of the court’s deliberative process, it is also “a show” and the briefing in a case is much more important.
Karlan argued and won a case this past term, Lozman v. City of Riviera Beach, Florida, in which the court held that her client, Fane Lozman, a speaker who was arrested at a city council meeting, could pursue his First Amendment retaliation suit despite the existence of probable cause for his arrest.
Representing Lozman as part of Stanford’s Supreme Court Litigation Clinic, Karlan was one of seven private-sector female lawyers to argue before the justices this past term. The others were government lawyers, mostly with the U.S. solicitor general’s office, but also two state solicitors general and one federal public defender.
The solicitor general’s office in recent years has been the source of frequent participation in oral argument by women, often 15 or more appearances in a given term. Karlan and Blatt note that a number of experienced female advocates have left the key Department of Justice office in recent years and joined Supreme Court specialty firms or top appellate practices of large firms.
These include Nicole Saharsky at Gibson, Dunn & Crutcher; Melissa Arbus Sherry at Latham & Watkins; Ginger D. Anders and Elaine J. Goldenberg at Munger, Tolles & Olson; and Sarah Harrington at Goldstein & Russell.
“I do think the next few years will be interesting because a lot of these women just left the SG’s office,” Blatt says.
RARE PARITY—OR MORE
Though she did not appear before the justices this past term, Blatt drew attention in the fall of 2016, when she squared off against another female advocate, Elizabeth B. Prelogar of the solicitor general’s office, in a case about double jeopardy, Bravo-Fernandez v. United States.
Because the court was shorthanded at the time, with the late Justice Antonin Scalia’s seat still vacant, that meant there were an equal number of men and women participating in the case either as a justice or an advocate. (That’s two female advocates, plus three female justices, alongside the five male justices.)
Neal K. Katyal, a former acting solicitor general under President Barack Obama and a Supreme Court and appellate litigator at Hogan Lovells, notes that in a Foreign Sovereign Immunities Act case argued in November 2016, Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Co., there was a likely unprecedented lineup.
“Three women advocates, three women justices and the rest men, so the women outnumbered the men,” Katyal observed at a Supreme Court preview panel last fall. “That was some progress, but there’s much to be done.”
Mika, whose full-time job is assistant general counsel of the Department on Disability Services in Washington, D.C., wrote a paper in the American University Journal of Gender, Social Policy & the Law. Following her research, she concluded that gender disparity in Supreme Court law clerkships may be affecting how many women gain the experience necessary to join the elite Supreme Court advocacy practices.
“Women have consistently only comprised one-third of the clerks selected by the justices for a given term every year since 2010,” Mika said in the 2017 paper.
“Clerkship experience clearly reflects an interest and aptitude in appellate law, which makes candidates attractive to firms with strong and distinguished practices before the Supreme Court as well as the [solicitor general’s office]. The fact that women continue to be less likely to obtain this experience places potential women Supreme Court advocates at a disadvantage.”
Still, Mika says that for the justices, lawyers, aspiring lawyers or anyone else, looking at the lectern during oral arguments and seeing two or three women participating, even if rarely, represents a measure of progress, but with plenty of room for improvement.
“You want the people who are presenting arguments significant to half the population to reflect that population,” Mika says.
“Half of our profession is female. Why aren’t they represented in what is considered the most significant opportunity you can get as a lawyer?”
This article was published in the August 2018 ABA Journal magazine with the title "Lost Ground: The number of women arguing before the court has fallen off steeply."
